Behan v. . the People
New York Court of Appeals
Behan was indicted and convicted, at the Onondaga G-eneral Sessions, of the offence of selling strong and spiritous liquors and wines, without having any license therefor, under section thirteen of chapter six hundred and twenty-eight of the Laws of 1857,. being the act to suppress intemperance, and to regulate the sale of intoxicating liquors.
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Behan was indicted and convicted, at the Onondaga G-eneral Sessions, of the offence of selling strong and spiritous liquors and wines, without having any license therefor, under section thirteen of chapter six hundred and twenty-eight of the Laws of 1857,. being the act to suppress intemperance, and to regulate the sale of intoxicating liquors. The judgment was, on appeal, affirmed by the Supreme Court at general term in the fifth district, and the defendant appealed to this court.
1Opinion of the Court
By the Court, Pratt, J.
It is well settled that where an act is prohibited by statute, which is not criminal at common law, and a penalty is imposed in the same statute, declaring such prohibition, the act is not indictable. The principle was distinctly recognized in the case of The People v. Smith (13 Wend., 341). It is based upon the assumption that the legislature, having fixed the penalty at the same time of prohibiting the act, designed that there should be no other punishment. But where the act was criminal at common law, or already prohibited by a former statute, the imposition of a…
2Cases cited2 opinions
- People v. StevensNew York Supreme Court · 1835
- People ex rel. Newell v. Montgomery Common PleasNew York Supreme Court · 1837
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- Brown v. . the Buffalo and State Line Railroad CompanyNew York Court of Appeals · 1860
- People v. SnyderAppellate Division of the Supreme Court of the State of New York · 1904
- Wiley v. StarbuckIndiana Supreme Court · 1873
- Hill v. . the PeopleNew York Court of Appeals · 1859
- The People v. . HislopNew York Court of Appeals · 1879
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